In conducting his hydrology analysis, Razavian used a "Curved Number" of 92, which Lindon criticizes as being "too high." Additionally, Union Pacific requests the Court appoint a neutral expert to be either a technical advisor to the Court or expert witness. Winecup did not undertake a program for investigation of the hydraulic adequacy of 23 Mile dam with respect to flood and seeping under a full hydraulic head, admittedly a safety concern, as noted in the 2003 inspection report under long term actions (3 years). The Winecup and Gamble Ranch was put back together after the split in 1957, according to ranch history. prescribes a regulation or issues an order covering the subject matter of the State requirement." Based on these classifications, Union Pacific argues that pursuant to NAC 535.240, Winecup was required to "construct, operate, and maintain," the 23 Mile dam to withstand a 100-year flood event, and the Dake dam to withstand a 1000-year flood event. 2:19-CV-00414 | 2019-06-17, U.S. District Courts | Contract | at 45, 50. The Court reiterates that the District Court has temporarily suspended all jury trials until further notice. 142) is GRANTED, as exhibits 10 and 11 contain information Union Pacific has marked "Confidential" under the Court's April 17, 2018 protective order and the request to seal is unopposed by Winecup. . 2019), reassignment is appropriate to preserve the appearance of justice, see In re 3 Benvin, 791 F.3d 1096, 1104 (9th Cir. NAC 535.140. 141-2 18), that is an argument best left for cross examination and goes toward the weight not the admissibility of Razavian's opinion. (Id. 111) is DENIED. 1. Federal Rule of Civil Procedure 26(a)(2)(A) provides: "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705." That is part of the adversarial processboth sides present their expert's opinions, challenging each other where they think the other erred, and then it is up to the jury to decide whom to believe. Lindon disputes that he erred as to either point. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions. See Ringle v. Bruton, 86 P.3d 1032, 1037 (Nev. 2004) (holding that parol evidence may be considered to resolve ambiguity and determine the parties' intent). However, Winecup argues that they should be permitted to ask questions about any expert or employee hired by the plaintiff that was not "in anticipation of litigation or to prepare for trial." 149) is granted. 129. Id. Second, as to the infiltration data, disagreements over data imputes are again best left to cross-examination and presentation of contrary evidence. v. Reyes, Case No. Additionally, because the Court is best positioned to rule on relevancy issues at trial when it can consider the evidence in context, the Court will reserve ruling on the relevancy of Fireman's testimony until that second proceeding as well. Union Pacific argues that due to the complexity of the Oroville Dam failure, evidence and argument on the topic would result in a "mini trial," and as the weather and flooding occurred outside the relevant watershed, the evidence is irrelevant. 141 at 6. The Court finds that Winecup has had more than enough time to consider this opinion and consult with its own expert on the subject such that it has not been prejudiced by Union Pacific's failure to disclose the opinion in Razavian's expert report. Godwin testified that the RS Means methodology is the "industry standard" for estimating construction costs. 160-4 at 6. 191. Lindon is a qualified expert in hydrology and meteorology. 18-16463-CIV-SELTZER, 2018 WL 4693526, at *1 (S.D. Winecup argues that Union Pacific should be precluded from offering evidence of negligence per se because it cannot be based on administrative regulations and the one statute that it believes Union Pacific pleads under this theory, NRS 535.030, also fails. In addition to other research goals, Rogers hopes that the scientists will work with ranchers from the ground up to develop outcome-based grazing metrics that are relevant to how ranchers manage their operations. Union Pacific motions the Court to bar Winecup from offering evidence of the Oroville Dam spillway failure and the weather and flood conditions that occurred in February 2017 in California and western Nevada. "The fact that the parties' experts have a divergence of opinion does not require the district court to appoint experts to aid in resolving such conflicts." To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Id. Union Pacific's fifteenth motion in limine to bar one paragraph in email referencing contract truck driver incidents (ECF No. [11785954] (BLS) [Entered: 08/12/2020 08:52 AM], (#5) Filed (ECF) Appellee Gordon Ranch LP Mediation Questionnaire. Bard, Inc., Case No. Extremely limited rainfall, roughly 7 inches annually, makes . The Court disagrees. 175), are denied without prejudice. The Court will not exclude Union Pacific from offering Fireman's deposition testimony at this time. Under Federal Rule of Civil Procedure 26(b)(4)(D), a party may not discover "by interrogatories or deposition . 133) is denied without prejudice. 2. 150) is denied without prejudice. 132) is GRANTED. However, they do not currently have these texts messages, and Mr. Fireman admitted that no one had searched his phone to attempt to preserve the text messages. [12050510] (BLS) [Entered: 03/23/2021 10:57 AM], Docket(#4) MEDIATION CONFERENCE SCHEDULED - DIAL-IN Assessment Conference, 03/31/2021, 12:00 p.m. PACIFIC Time. (ECF No. Specifically, Union Pacific requests that it be permitted to amend its witness list to include Fireman and Worden to testify via their respective depositions from Gordon Ranch, and add the information to the undisputed fact section of the Order. Mediation Questionnaire due on 03/16/2021. 1. Next, Union Pacific argues that two of Godwin's opinion related to Winecup's contributory negligence defense should be excluded: (1) Godwin opines that based on his experience in railroad construction and design, that it is industry standard that railroads throughout the country use culverts large enough to handle flows associated with a 100-year storm; and (2) Godwin opines that the culverts in place before the flood were not large enough to withstand a 50-year storm. He has "significant experience with hydrometerorology, surface water hydrology, modeling, and dam safety hydrology." Winecup does not oppose this request. ECF No. REVERSED, VACATED, and . Thus, these regulations are not interpretive, but legislative and should not apply retroactively. The Court will address each argument in turn. NAC 535.240 is the only place in Chapter 535 that explains, colloquially, that a significant hazard dam must withstand a 1000-year flood event and a low hazard dam must withstand a 100-year flood event. Plaintiff admitted that Mr. Worden was the principal negotiator in forming the deal resulting in some text messages between him and Mr. Fireman. 16. ECF No. The case status is Pending - Other Pending. 157-2 at 10-15, 26, 30, 52. 3. As part of the agreement, Defendant deposited a million dollars of earnest money in escrow. Email. In Nevada, "[r]etroactivity is not favored," and courts generally interpret regulations to "only operate prospectively unless an intent to apply them retroactively is clearly manifested." Gordon Ranch filed a motion for judgment on the pleadings; Winecup Gamble filed its motion for summary judgment. ECF No. R. EVID. (ECF No. Union Pacific's eleventh motion in limine to bar Rule 702 opinions (A) generally, if not in expert reports, and (B) specifically, from Luke Opperman (ECF No. ECF No. After Winecup became aware of these opinions, its own expert, Lindon, conducted an additional investigation to determine the cause of the washout, including an on-the-ground field inspection of the Loray Wash and a topographical survey of the area. 123. 111-7 43. 3:17-cv-00477-LRH-CLB (D. Nev. Dec. 4, 2020). Id. Union Pacific's late disclosure regarding Razavian's opinion on the washout at mile post 670.03, while untimely, is harmless and Razavian's opinions on the subject are admissible. The Court finds that Lindon's opinions on both meteorology and hydrology are reliable. Union Pacific requests the Court bar Winecup from admitting a paragraph of an email from a Union Pacific employee discussing traffic incidents with a Nevada Department of Transportation employee. Union Pacific argues that doing so would enable a smooth presentation of exhibits to the jury. According to ZoomInfo records, James Rogers's professional experience began in 2015. Union Pacific moves this Court to permit its witnesses that must travel by plane or more than three hours by car to testify via videoconference. IT IS FURTHER ORDERED that the parties are to submit an amended pretrial order within 45 days of the filing of this Order. Union Pacific cites an email from Bill Nisbet to James Rogers, in which he states: It is unclear whether the parties are referring to the Federal or State agency. Id. See Land Baron Ivs., Inc. v. Bonnie Springs Family LP, 356 P.3d 511, 522 (Nev. 2015) (affirming an award of punitive damages for a nuisance counterclaim); Parkinson v. Winniman, 344 P.2d 677, 678 (Nev. 1959) (holding that an award of exemplary damages was proper upon proof of intentional trespass). During this period, Defendant claims to have discovered that Plaintiff's agent, Mr. Clay Worden, and its owner, Mr. Paul Fireman, deleted ESI pertinent to the factual issues of this case. Union Pacific Railroad Company v. Winecup Ranch, LLC et al, Prime Healthcare Services - Reno, LLC v. Hometown Health Providers Insurance Company, Inc. et al, Elko Broadband Ltd. v. Haidermota BNR, Lawyers and Counsel with Offices in Islamadad, Islamic Republic of Pakistan et al. However, Mr. Worden performed most of the negotiations for Plaintiff in reaching the agreement and amendment generating numerous emails and text messages with Mr. Fireman and others that allegedly no longer exist as well as other lost ESI. Owners Russell Wilkins and Martin Wunderlich had divided the ranch in 1945. Union Pacific rebuilt these areas with steel bridges instead of rebuilding the embankments and culverts. Appellant Winecup Gamble, Inc. opening brief due 05/07/2021. & Constructors Inc., 880 F.2d 219, 221 (9th Cir. First, Winecup argues that a plain reading of the text of NAC 535.240 shows that the applicability of the statute is limited to approval for new construction, reconstruction, or alterations, but it does not apply to dams in existence before the statute went into effect that have not been modified or altered. Additionally, Union Pacific does not object to Winecup providing jurors with their own binders. Id. He has taken continuing education courses in hydro-meteorology, and has "operated the National Weather Service Station for Park City, Utah for the past 26 years, measuring and reporting temperatures, snowfall, snowpack and precipitation daily." IT IS FURTHER ORDERED that Union Pacific's tenth motion in limine requesting that the Court instruct the jury before trial about certain laws that apply to Nevada dam owners (ECF No. Alternatively, even if the regulation did preempt the state common law standard, the federal standard would apply and not preclude the defense itself. R. CIV. Winecup's first motion in limine to exclude Union Pacific's expert Daryoush Razavian's testimony related to mile post 670.03 (ECF No. And, "[u]nless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." Id. Id. (ECF No. Winecup argues that because the Dake dam did not fail or overtop, whether Winecup failed to submit an emergency action plan for the dam, as all significant hazard dam owners are required to do under NAC 535.320, is irrelevantthere can be no causal connection between Union Pacific's injury and Winecup's failure to submit the plan. While, Mr. Worden claimed that, "I could have deleted those emails right after the conversation," (ECF No. H at 1 (Privilege Log noting that Mr. Worden sent an email with the Bates Number "REV00000041" summarized as "Email re response to Margaret Ludewig" dated March 6, 2017.). [20-16411] (AD) [Entered: 07/28/2020 06:44 PM], Docket(#3) MEDIATION ORDER FILED: By 08/11/2020, counsel to email Circuit Mediator regarding settlement potential. Accordingly, Union Pacific's motion (ECF No. ECF No. He further provides that he has been working for Class 1 and shortline railroads since 2005, starting his own railroad engineering and construction observation company in 2013. ECF Nos. 155. The schedule is set as follows: Appellant Winecup Gamble, Inc. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. Lindon declared that he checked and calibrated the model ultimately determining with a "high degree of confidence that the model accurately reflects" the February 2017 flood event. Winecup motions the Court exclude the opinions and testimony of Union Pacific's hydrology expert, Daryoush Razavian, regarding the washout at mile post 670.030. Section 42.001(1) "plainly requires evidence that a defendant acted with a culpable state of mind," and the defendant's conduct "at a minimum, must exceed mere recklessness or gross negligence." See ECF No. . 3:17-cv-00477-LRH-CLB, 2020 WL Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11771335]. Research the case of Winecup Gamble, Inc. v. Gordon Ranch LP, from the D. Nevada, 03-01-2023. 2. The Court finds that whether the proffered evidence is relevant or if it would be unfairly prejudicial is best determined at trial when it can be adjudged in context. Under Nevada law, the question of "[w]hether or not a document is ambiguous is a question of law for the court." ECF No. Prior to the flood, there were earthen embankments and culverts at the washout locations. Here, both parties have retained their own experts, and as discussed below, all are qualified. With this expeditious timeframe, Defendant has shown that the ESI was deleted after the duty arose to preserve the ESI. at 44:19-45:1), inappropriate backup settings (Id. 37, 89. 126) is denied. 31). 125) is GRANTED in part and DENIED in part, in accordance with this Order. In 1996, DWR indicated that it appeared that new hydraulic controls were presented, and that plans and specifications for these plans needed to be submitted. The Court finds that the agents did intentionally spoliate ESI vital to the issues of this case, which resulted in prejudice that can only be cured through dispositive rulings in Defendant's favor. ECF No. 6. Union Pacific requests that the Court order the parties to try to agree on (or submit competing) preliminary jury instructions relating to the statutes and regulations that apply to dam owners in Nevada. Therefore, while the email itself is not hearsay, the at-issue statements contained within it are, and an applicable hearsay exception is needed for them to be admissible. Even then, rulings on these motions are not binding on the court, and the court may change such rulings in response to developments at trial. 112. And the best part of all, documents in their CrowdSourced Library are FREE! See Madrigal v Treasure Island Corp., Case No. 156. This is the subject of Winecup's first motion in limine; therefore, Union Pacific's arguments will be addressed below. (Id.) Id. ECF No. 91). The Court dismisses Plaintiff's complaint and enters judgment in favor of Defendant on its counterclaim. Appellant's optional reply brief is due 21 days after service of the answering brief. However, the statements contained within the email are articulating what an NDOT manager told the Union Pacific employee. The FRSA also includes an express preemption provision: "A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation . (ECF No. 122 at 2. See Part III.A.1.iii. In allowing note taking, the Court finds it appropriate to give jurors Ninth Circuit Model Jury Instruction 1.18 Taking Notes, or one comparable, that is agreed on by the parties. The briefing schedule previously set by the court is amended as follows: appellant's opening brief is due May 21, 2021; appellee's answering brief is due June 21, 2021; appellant's optional reply brief is due within 21 days from the service date of the answering brief. Notably, Union Pacific's expert did not conclude that the technique was generally improper. A at 14.) The Honorable Fernando M. Olguin, United States District Judge for the Central District of California, sitting by designation. 1. Finally, because Winecup has not "admitted" the facts as presented by Union Pacific, the Court will not permit Union Pacific to add the information to the "undisputed facts" section of the pretrial order. Accordingly, Union Pacific's sixteenth motion is denied without prejudice and the Court reserves ruling on whether the terminology is either irrelevant, unfairly prejudicial or overly technical such that an expert is needed to testify, based on the context in which it is presented at trial. ECF No. Bates Land Consortium has closed 640 transactions - encompassing nearly 2,600,000 acres of deeded land - approaching $2.70 billion in total value. Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004). Union Pacific's arguments to exclude Godwin's opinion go not to admissibility, but to the weight and are best left to cross-examination during trial; the exclusion is denied. IT IS FURTHER ORDERED that Union Pacific's twenty-first motion in limine to amend the Pretrial Order (ECF No. Winecup opposes, arguing that the proposed instructions are improper standard of care instructions for a negligence case, the proposed list is biased in favor of Union Pacific, and if the Court is inclined to give such instructions, then it should also preliminarily instruct the jury as to all elements of negligence in a neutral and accurate manner. SEND MQ: Yes. Winecup intends to introduce Godwin's opinion as evidence of what size culverts should be used based on the industry standard. And while "[i]n some cases, it may be cost-effective for counsel simply to provide jurors with individual binders containing indexed copies of selected exhibits central to the presentation at trial," electronic display systems that show everyone in the courtroom the exhibit simultaneously likewise "significantly assist jury involvement and comprehension and expediate trial." However, Union Pacific may present this evidence only in the secondary proceeding to determine the amount of punitive damages, should the case reach this proceeding. See Francis v. MSC Cruises, S.A., Case No. During the deposition of Winecup's designated Rule 30(b)(6) witness, James Rogers, he testified that he "did not know" the answers to several of Union Pacific's questions. 132) on hearsay grounds. Whether an Act of God caused 23 Mile dam's failure and subsequent flooding and damage to Union Pacific's railroad tracks is an issue of fact for the jury. The Ranch owns extraordinary water rights for 2,500 acres of productive irrigated crop land and 8,750 acres of strong irrigated and sub-irrigated pasture plus . at 4 (citing Ringle v. Bruton, 86 P.3d 1032, 1037).) Plaintiff conducted a deposition of Mr. Worden subpoenaing all of his documents (including ESI) regarding discussions of the sale of ranch and amendments, the damage to the property, the repairs of the property, breakage of dams, and insurance information. Union Pacific motions the Court to exclude Winecup's expert, Matthew Lindon, from providing opinions on meteorological and hydrological issues. Conversely, Clay Worden was never an employee of Winecup, and testified in Gordon Ranch in his individual capacity, not as a corporate witness or agent of Winecup. Get free access to the complete judgment in Winecup Gamble, Inc. v. Ranch on CaseMine. On or about February 8, 2017, the 23 Mile dam overtopped and breached in two locations. Date of service: 07/29/2020. Importantly, the parties dispute whether the February 2017 storm was greater or less than a 100-year storm eventUnion Pacific's expert concluded that the storm event did not exceed the 100-year event, while Winecup's expert, Lindon, concluded that it did. The Court will address each in turn. Include Ninth Circuit case number in subject line. The Court finds Lindon is a qualified expert in meteorology and hydrology, as it relates to his opinions in this specific case. ECF No. All foota. The Court finds that multiple exhibit binders each with a few hundred exhibits is impractical and unnecessary given the electronics available in the courtroom. Date of service: 07/28/2020. The ranch, in 2016, was for sale again. Id. Given this pandemic, the Court will allow witnesses to appear by ZOOM video conferencing. The Court agrees with the Gallo Court's interpretation of the FRSA and the applicability of preemption in the negligence context. ), The original terms of the agreement contained a comprehensive risk-of-loss provision. Union Pacific attacks Lindon's hydrology testimony, arguing that (1) Lindon misapplied the "gage stream technique" and (2) used the wrong infiltration data. 160-4 at 26. The court's role is to "screen the jury from unreliable nonsense opinions, . 155-4 at 5; ECF No. See NAC 535.055 ("Inflow design flood" means "a hypothetical flood of a given magnitude that is used to determine the design of a dam and its related hydraulic features. . C 06-04435 CRB, 2007 WL 963422, at *1 (N.D. Cal. ECF No. Id. facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial." 130) is DENIED without prejudice. (Id. The parties subsequently signed a three-page amendment to the agreement that changed the closing date and increased the earnest money to five million dollars. Co. v. Mendelsohn, 552 U.S. 379, 384-87 (2008). . 108 at 11. Work Experience Gamble Ranch Manager Winecup Gamble Ranch 2015-2023 Board Memberships & Affiliations Board Member Western Landowners Alliance 2019-2021 Advisory Board Member Seventh Generation Institute 2019-2021 View James Rogers's full profile
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